Discussions of a Doctor’s Competence Will Almost Always Fall Under the Anti-SLAPP Statute

anti-SLAPP peer review

Many years ago, I represented a woman who had posted a Yelp review about her lawyer, who sued her for defamation over the review. In response to my anti-SLAPP motion, the judge stated that the performance of a lawyer was not a matter of public interest, and therefore did not fall under the anti-SLAPP statute. The judge was incredulous that I would even make such a claim, saying that if my client had a problem with the lawyer’s performance, she should have complained to the State Bar.

He was wrong.

The appellate courts have since uniformly held that the performance of doctors and lawyers (and other professionals) are always a matter of public interest, since the public is generally interested in the competence of a doctor or lawyer they may be considering. In the specific case of a doctor, the peer review process also enjoys protection under the anti-SLAPP statute, albeit under a different provision.

So, when concerning a doctor’s competence, comments on a review site, or the peer review process, are protected. But what about the general comments concerning a doctor’s competence that are spread around a hospital? Would those too be protected? For example, what if the other doctors at a hospital warn patients about a particular doctor? That’s not really a public review, and it certainly isn’t part of the formal review process, so would such warning be covered by California’s anti-SLAPP statute?

That question was answered this month in the case of Suzanne M. Yang v. Tenet Healthcare, Inc., decided in California’s Fourth Appellate District. The case reminds me of an AT&T commercial.

Yang v. Tenet Healthcare, Inc.

I’m going to take a deep dive into this case, both because it shows that the anti-SLAPP statute casts a very wide net, and because it applies the recent opinion of the California Supreme Court in FilmOn.com Inc. v. DoubleVerify Inc. (“FilmOn”).

In June 2018, Suzanne M. Yang and here medical corporation sued Tenet Healthcare Inc., doing business as John F. Kennedy Memorial Hospital (the hospital), its medical staff, and individual doctors (collectively, defendants), alleging defamation and nine other causes of action. Defendants filed a special motion to strike (also known as an anti-SLAPP motion), targeting only the defamation cause of action.

According to the complaint, Yang is a doctor with a general surgery practice in Indio. She alleges that since March 2016, defendants have conspired to drive her practice out of business in various ways, including by making defamatory statements. Doctors who referred cases to Yang, she alleges, were told they should not do so, and she accuses defendants of falsely stating to “healthcare providers,” “medical practices,” her “patients,” and “members of the general public” that she did not have privileges for certain procedures. Defendants also allegedly told these people that Yang “rendered care below applicable standards of practice,” that “[h]er behavior and medical ethics were below applicable standards,” that she was not “qualified or competent to practice her specialties,” that she is “dangerous to [her] patients and to employees and members” of the hospital’s medical staff, and that she was “‘under investigation.’”

Defendants’ anti-SLAPP motion contended that the statements were protected activity because they were made in connection with the hospital’s peer review process (see § 425.16(e)(2) and Kibler v. Northern Inyo County Local Hospital District (2006) 39 Cal.4th 192 (Kibler)) and because they were made in furtherance of the exercise of the right of free speech in connection with a public issue or an issue of public interest (see § 425.16(e)(4)). Defendants also contended that Yang could not demonstrate a probability of prevailing because she consented to the peer review process that the statements were purportedly in connection with, and because the statements were privileged.

In opposing the motion, Yang submitted declarations from herself and others. In her declaration, Yang stated the following:

4. In April and early May of 2016, I was approached at [the hospital] in Indio by several doctors, surgeons and anesthesiologists . . . ; by several OR [i.e., operating room] nurses, OR techs, and OR circulators; by Nurses from [intensive care unit], [emergency room], and employees of the [hospital] cafeteria, all offering their condolences, saying they heard I was under formal investigation.

5. When I asked them what they heard, some said insurance fraud; all said doing Plastic Surgery without permission.

6. Neither in or about March-April 2016, when I first learned of defendants’ false statements that I was ‘under investigation[,’] nor at any time before or thereafter did I receive notice of any time or form from [the hospital or] its Medical Staff . . . that there was then, or at any time, an investigation concerning me . . . .

Section 425.16(e)(4) protects “any other conduct in furtherance of the exercise of . . . the constitutional right of free speech in connection with a public issue or an issue of public interest.” In FilmOn, the California Supreme Court held that under this provision, “a court must consider the context as well as the content of a statement in determining whether that statement furthers the exercise of constitutional speech rights in connection with a matter of public interest.” Specifically, the inquiry calls for its own two-step analysis: “First, we ask what ‘public issue or issue of public interest’ the speech in question implicates – a question we answer by looking to the content of the speech. Second, we ask what functional relationship exists between the speech and the public conversation about some matter of public interest. It is at the latter stage that context proves useful.” The court referred to these as the “public issue” and “functional relationship” steps.

In this case, the content of the speech, as indicated by both the allegations in the complaint and the affidavits submitted in opposition to the motion, show that the public issue implicated is the qualifications, competence, and professional ethics of a licensed physician. As Yang alleges, defendants told others that she was not “qualified or competent,” that she “rendered care below applicable standards of practice,” that her “ethics” were “below acceptable standards,” and that she was “dangerous” to her patients and others. These clearly implicate Yang’s qualifications, competence, and professional ethics. Olmos’s statement that hospital administrators told her Yang was “performing surgeries she was not privileged to perform,” “was potentially incompetent” to perform certain surgeries, and “intentionally trying to deceive the insurance providers and the hospital,” among other actions, similarly raise these characteristics.

The court held that whether or not a licensed physician is deficient in such characteristics is a public issue. (See Kibler, 39 Cal.4th at p. 201 [in exercising “primary responsibility for monitoring the professional conduct of physicians licensed in California,” hospitals, through their peer review committees, “oversee ‘matters of public significance,’ as described in the anti-SLAPP statute”]; Healthsmart Pacific, Inc. v. Kabateck (2016) 7 Cal.App.5th 416, 429 [“members of the public, as consumers of medical services, have an interest in being informed of issues concerning particular doctors and health care facilities”].)

Of special note, the court disagreed with the holding from Dual Diagnosis Treatment Center, Inc. v. Buschel (2016) 6 Cal.App.5th 1098, to the extent it suggested the qualifications of a local healthcare provider are not a public issue. There, the court held that statements concerning the “licensing status of a single rehabilitation facility” did not fall under subdivision (e)(4) because it was not a public issue. (Dual Diagnosis, at p. 1105.) That case, however, was decided years before, and therefore without the benefit of, the Supreme Court’s opinion in FilmOn.

Regarding functional relationship, FilmOn stated that subdivision (e)(4) “demands ‘some degree of closeness’ between the challenged statements and the asserted public interest.” As the court stated, “‘it is not enough that the statement refer to a subject of widespread public interest; the statement must in some manner itself contribute to the public debate.’” (FilmOn, at p. 150.) “What it means to ‘contribute to the public debate’ will perhaps differ based on the state of public discourse at a given time, and the topic of contention,” but ultimately “we examine whether a defendant—through public or private speech or conduct—participated in, or furthered, the discourse that makes an issue one of public interest.

Here, Yang’s own allegations that defendants informed her “patients” and the “general public” that she was generally unqualified, as well as Olmos’s statement that the hospital had directed several doctors to “no longer refer patients” to Yang “due to the fact she was suspended and under investigation for fraud,” demonstrates that defendants directly participated in and contributed to the public issue. This is so for two reasons.

For one, as Yang alleges, the defamatory statements were communicated to the public, not just to discrete doctors or hospital staff members. This context is significant, because speech to the public about a doctor’s qualifications furthers the public discourse on that matter. Secondly, the hospital’s directive that doctors should no longer refer patients to Yang is similar to a statement made by a third party to aid and protect consumers, the latter of which has consistently been held to constitute protected activity under the anti-SLAPP statute. (See, e.g., Chaker v. Mateo (2012) 209 Cal.App.4th 1138, 1146; Carver v. Bonds (2005) 135 Cal.App.4th 328, 343-344; Wilbanks v. Wolk (2004) 121 Cal.App.4th 883, 900.) Defendants telling doctors to not refer patients to Yang is akin to consumer protection information in that defendants ostensibly seek to protect the patients’ interests. Stating that a doctor should not have patients referred to her because she is unqualified and unethical is not a “slight reference to the broader public issue” of physicians’ qualifications (FilmOn, 7 Cal.5th at p. 152); rather, it directly contributes to the discourse by contending a physician lacks those qualifications.

Prong Two — Probability of Prevailing

When a defendant makes the required showing at the first step, “‘the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success.’” (Monster Energy Co., 7 Cal.5th at p. 788.) In evaluating this second step, “‘[t]he court does not weigh evidence or resolve conflicting factual claims. Its inquiry is limited to whether the plaintiff has stated a legally sufficient claim and made a prima facie factual showing sufficient to sustain a favorable judgment. It accepts the plaintiff’s evidence as true, and evaluates the defendant’s showing only to determine if it defeats the plaintiff’s claim as a matter of law.’” However, “a plaintiff seeking to demonstrate the merit of the claim ‘may not rely solely on its complaint, even if verified; instead, its proof must be made upon competent admissible evidence.’” (Ibid.)

The court concluded that Doctor Yang could not establish a probability of success for the very simple reason that all of her causes of action were time-barred. A cause of action for defamation must be filed within one year of when the cause of action accrues.  “[A] cause of action for defamation accrues at the time the defamatory statement is ‘published,’” and “publication occurs when the defendant communicates the defamatory statement to a person other than the person being defamed.” Shively v. Bozanich (2003) 31 Cal. 4th 1230, 1246.

Here, Yang’s declaration, as well as the declarations of others submitted with her opposition, indicated that Yang based her causes of action on statements defendants made no later than 2016. For instance, Yang states that she “first learned of defendants’ false statements that [she] was ‘under investigation’” for “insurance fraud” and “doing Plastic Surgery without permission” “in or about March-April 2016.

Although sometimes a defamation cause of action does not accrue until a plaintiff learns of the defamatory statement (see Shively, 31 Cal.4th at p. 1248), Yang’s action would be time-barred even if the court had applied the discovery rule, because Yang alleged that she discovered the substance of the defamatory statements “in or about March-April 2016.” On this basis, the Court of Appeal held that the trial court therefore erred when it applied the discovery rule and held that it could not “determine as a matter of law that the claim is barred by the statute of limitations.”

Conclusion

It is important to focus on the statute of limitations analysis for a couple of reasons. First, in defense of Dr. Yang, this case never reached the issue of her competence. In a typical anti-SLAPP analysis in the context of a defamation claim, if the motion is granted, that means the plaintiff was unable to demonstrate even a prima facie claim. Such is equally true here, but only because the claims were time-barred. Whether the statements being made about Dr. Yang were true or false was never decided in this action.

But of more importance to an anti-SLAPP practitioner, this shows the reason why one should bring an anti-SLAPP motion, even when a demurrer or motion for summary judgment might suffice. It’s a hard concept to explain, but I see attorneys who think in terms of whether both prongs fall under the anti-SLAPP statute. What I mean is that they of course examine the facts to determine whether the first prong can be met — whether the conduct or speech falls under the anti-SLAPP statute — but they simultaneously think that the second prong — the likelihood of success — must be be defeated by showing a privilege, or lack of malice; something related to defamation. Whereas, as this case illustrates, that second prong may be defeated with something as basic as the statute of limitations, or jurisdiction, or whatever.

The approach I use is to determine first what evidence or procedural point is the plaintiff lacking. For example, did my client post the comment? Is the defamation claim time-barred? Can the plaintiff prove what my client allegedly said to the reporter? These are all factors that could defeat the action, and on that basis might be subject to a demurrer or motion for summary judgment. But then I check to see if it falls under the anti-SLAPP statute, because that will enable my client to recover their attorney fees.

This analysis also avoids the situation that I have seen, where the attorney brilliantly analyzes the first prong to determine that the facts of the case do fall under the anti-SLAPP statute, and brings the motion on that basis, with seemingly little or no thought given to whether the plaintiff will be able to meet the second prong.

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Aaron Morris, Attorney
Aaron Morris
Morris & Stone, LLP

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